Opinion: Pollution knows no boundaries

Ruth Greenspan Bell and Steven Silverma

Wednesday

Jun 5, 2019 at 4:00 PM

In 2014, Supreme Court Justice Ruth Bader Ginsburg wrote that "air pollution is transient, heedless of state boundaries." It may have been the case in a pre-industrialized country, when Thomas Jefferson and Alexander Hamilton were slugging it out about the relative power of states and the federal government, that pollution in one state didn't travel that far from where it was created. But those conditions are long since history. Water may always flow downhill, but we learn more every day how animal-waste lagoons, coal-ash ponds and a variety of seemingly local pollution points find their way into adjacent and then more distant water bodies.

So it's particularly strange that the Trump administration has taken an inconsistent and deeply cynical approach to allocating federal and state responsibilities for pollution control. When it suits its needs, the mantra becomes deference to states, apparently predicated on a rosy, 18th-century states'-rights philosophy that is completely at odds with 21st-century science. But when states try to act in accordance with scientific reality and reduce their impact on their neighbors, suddenly, they're out of line. Just as the Trump administration has taken a heedless approach to the environment, officials are upsetting the delicate regulatory ecosystem that guaranteed all citizens a level of protection from pollution.

It hasn't always been so. Under previous Republican and Democratic administrations, the Environmental Protection Agency required coal-burning power plants in 26 states that contributed significantly to unhealthy air quality in downwind states to control their soot and smog-precursor emissions. The objective has always been to preserve the health and safety of all Americans, wherever they live.

By contrast, in the Trump era, the EPA has issued a series of rulemaking proposals that willfully ignore the harm that can be done across state borders and, as the U.S. Chamber of Commerce has crowed, truly put states in the driver's seat. An attempt to change the definition of "waters of the United States" is intended to shrink the number of waterways and bodies of water subject to regulation under the Clean Water Act. (A more expansive Obama-era definition has been tied up in court since 2015.) The Affordable Clean Energy rulemaking is an effort to repeal virtually all of the Clean Power Plan, on the grounds that it went beyond the EPA's authority. Both decisions are a shocking attempt by the EPA to define away the agency's own authority.

These rulemaking efforts are rooted in the idea that states should lead on setting regulatory standards because such decisions should be based on local knowledge and local needs. Under this theory, state government is closer to the wishes and preferences of its citizens and therefore better suited to make such decisions, though it might be wise to ask the people of Flint, Michigan, how that approach worked for them.

And these changes ignore the EPA's responsibility to protect everyone's health. Doing so requires a comprehensive system, not the parochial approach of simply turning over decisions to states. Indeed, that very concern - a patchwork of approaches, some protective, others not, imposed on the reality that water bodies frequently connect - led to the 1972 Clean Water Act.

The Clean Air Act explicitly features a " 'Good Neighbor' Provision" allowing states whose clean-air objectives are thwarted by significant pollution from outside their borders to petition the EPA for a finding that another state is contributing significantly to the first state's pollution. Such a finding can trigger curtailment of those out-of-state emissions.

What makes the Trump administration's actions on the environment even more appalling is that officials' stated dedication to federalism disappears when states try to innovate in the direction of protecting their citizens and setting higher standards for environmental regulation than required by the federal government.

The current EPA is rushing to strip California and other states of their power to set tougher vehicle emission standards than the federal government, with a decision expected very soon. California has always been a leader and innovator in motor vehicle pollution control, something Congress recognized in the 1970 Clean Air Act, which made it possible for California to set high standards that other states would then be encouraged to follow. The direction the current administration is headed confounds nearly 50 years of practice.

While the Trump approach to environmental protection is rooted in hypocrisy, the balance the EPA set in previous administrations was the correct one: Every state must meet minimum standards, but there is leeway for states to test out more protective and innovative approaches. These often create pathways for broader national adoption.

The Trump administration's transparent objective in the fight with California is to thwart any attempt to deal with the scourge of climate change. Similarly, reverting to a patchwork states'-rights approach to environmental regulation makes a mockery of effective pollution control. A country that values innovation and addressing new challenges should welcome efforts by states to be labs for new approaches to solve national problems, while guaranteeing that citizens in all states receive a standard level of environmental protection. The American public deserves more than just the lowest common denominator when it comes to protecting public health.

Ruth Greenspan Bell is a public policy scholar at the Woodrow Wilson International Center for Scholars and a former assistant general counsel in the Environmental Protection Agency's office of general counsel. Steven Silverman was an attorney in the EPA's office of general counsel from 1980 to 2017.

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